Definition “b” above talks about judicial determinations of a serious violent offence. Any time a youth is found guilty in court of a serious and violent offence, the crown prosecutor can ask the court for an opportunity to establish that the offence should be considered a “serious violent offence” for the purpose of adult sentencing (section 42(9)). If the judge agrees, the court then makes sure that this decision or “judicial determination” is recorded.
The application for a judicial determination must be made shortly after the youth has been found guilty of the offence; the crown prosecutor cannot ask for offences committed sometime in the past to be labeled serious violent offences.
The court can make the judicial determination that an offence is a serious violent offence as long as the offence happened after the youth turned 12 years of age. Once the youth has two previous judicial determinations that he or she committed serious violent offences and then commits a third serious violent offence (which takes place AFTER the youth has turned 14 years of age), that offence meets the criterion for presumptive offence “b” and an adult sentence could be given.
(c) There is also a third way for a youth to receive an adult sentence, even if they have not been found guilty of a presumptive offence. This can occur when the crown prosecutor seeks an adult sentence for a young person who commits an indictable offence for which an adult could receive a prison sentence of over 2 years in length.
If a youth has been charged with a presumptive offence, this means that it is presumed that the youth will get an adult sentence. But an adult sentence will not automatically be given even if the youth is charged with a presumptive offence. The youth is allowed to apply for a youth sentence or to argue against the crown’s application for an adult sentence. In some cases, if the youth does not give notice to oppose the adult sentence then an adult sentence will be given. In other cases, the court will have a hearing to decide if an adult sentence is applicable.
In most cases, once the crown prosecutor gives notice to the youth that the crown will be asking for an adult sentence, the youth is given what is called an “election”. An election means the youth chooses or elects how he or she wants to be tried. The young person can choose from trial by;